Navigation (Confidential Marine Reporting Scheme) Regulations 2008 (Cth)

Navigation (Confidential Marine Reporting Scheme) Regulations 2008¹

Select Legislative Instrument 2008 No. 278

I, QUENTIN BRYCE, Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Navigation Act 1912.

Dated 12 December 2008

QUENTIN BRYCE

Governor‑General

By Her Excellency’s Command

ANTHONY ALBANESE

Minister for Infrastructure, Transport, Regional Development and Local Government

Contents

Part 1Preliminary

1Name of Regulations 3

2Commencement 3

2ARepeal and transitional 3

3Application 3

4Interpretation 3

Part 2REPCON Marine

5Establishment and purposes of scheme 3

6Powers and functions of Executive Director 3

Part 3Reporting

7What may be reported? 3

8How are reports to be made? 3

9Can a report be made orally? 3

Part 4Assessment and acceptance of reports

10Processing of reports 3

11Dealing with reports that have been accepted 3

12Reports the making of which may have constituted an offence 3

Part 5Disclosure and use of reports and information in reports

14Disclosure of personal information in reports 3

15Opportunity to comment on reports in certain circumstances 3

16Report not to be ground for disciplinary action 3

17Reports not to be admissible in evidence 3

Part 6Reports relating to terrorist acts

18Reports relating to terrorist acts 3

19Authorisation of disclosures of personal information for this Part 3

Part 7Miscellaneous

20Delegation by Executive Director 3

Part 1 Preliminary

Name of Regulations

These Regulations are the Navigation (Confidential Marine Reporting Scheme) Regulations 2008.

Commencement

These Regulations commence on 2 February 2009.

2ARepeal and transitional

(1)The Navigation (Confidential Marine Reporting Scheme) Regulations 2004 are repealed.

(2)Despite subregulation (1), the Navigation (Confidential Marine Reporting Scheme) Regulations 2004 continue to have effect in relation to reports made before the commencement of these Regulations.

Application

These Regulations apply to marine activities associated with the operation or safety of a ship to which the Act applies.

Interpretation

(1)In these Regulations:

Act means the Navigation Act 1912.

Executive Director has the meaning given by section 3 of the TSI Act.

Marine Orders means the orders made under subsection 425 (1AA) of the Act, as in force from time to time.

personal information has the meaning given by subsection 6 (1) of the Privacy Act 1988.

REPCON Marine means the scheme established under subregulation 5 (1) for the confidential reporting of reportable safety concerns.

reportable safety concern has the meaning given by regulation 7.

reporter, in relation to a report purportedly made under REPCON Marine, means the person who made the report.

RSC report means a report in which a reportable safety concern is described.

terrorist act has the meaning given by subsection 100.1 (1) of the Criminal Code.

TSI Act means the Transport Safety Investigation Act 2003.

working day, in relation to a person or organisation, means a day that is not a Saturday, Sunday or public holiday in the place where that person lives, or that organisation is located.

Note The following terms are defined in subsection 6 (1) of the Act:

·Authority

·equipment

·port

·radio equipment

·ship.

(2)For the purposes of these Regulations, any information obtained or generated by the Executive Director in the course of clarifying or verifying information in a report is part of the report.

Part 2 REPCON Marine

Establishment and purposes of scheme

(1)There is established a scheme (REPCON Marine) for the confidential reporting of reportable safety concerns.

(2)The scheme is to be administered by the Executive Director.

(3)The primary purposes of the scheme are to enable the Executive Director:

(a)to provide a confidential reporting scheme for reportable safety concerns; and

(b)to use the reports made under the scheme to identify unsafe procedures, practices or conditions; and

(c)to provide information to the maritime industry about an identified unsafe procedure, practice or condition to facilitate safety awareness and safety action and improvements by other persons and organisations.

(4)The secondary purpose of the scheme is to enable the Executive Director to provide information, arising from reports, about a maritime security concern to an appropriate person or organisation to facilitate security awareness.

Powers and functions of Executive Director

Without limiting the generality of the powers and functions of the Executive Director as administrator of REPCON Marine, the Executive Director has the following powers and functions:

(a)to accept and process reports;

(b)to forward, return or destroy reports;

(c)to review information contained in reports;

(d)to establish and maintain databases for storing information contained in reports;

(e)to issue information briefs or alert bulletins that the Executive Director considers are necessary or desirable in the interests of maritime safety;

(f)to publish details of reviews made under paragraph (c);

(g)to liaise with any group or committee established to assess the effectiveness of REPCON Marine.

Note Parts 5 and 6 affect the powers and functions of the Executive Director relating to information contained in reports.

Part 3 Reporting

What may be reported?

(1)Each of the following concerns (reportable safety concerns), in relation to the safety of a ship, may be reported under REPCON Marine:

(a)an incident or circumstance that affects the safety of maritime navigation, for example:

(i)the ship nearly being stranded or involved in a collision; or

(ii)the ship suffering a loss of stability to the extent that the safety of the ship is, or could be, endangered;

(b)a procedure, practice or condition that a reasonable person would consider endangers, or, if not corrected, would endanger, the safety of maritime navigation, for example:

(i)the ship having unsafe handling characteristics; or

(ii)unsafe navigation; or

(iii)deviation from established collision‑avoidance procedures; or

(iv)inadequate passage planning; or

(v)unsafe bridge procedures; or

(vi)crew schedules that result in fatigue; or

(vii)bypassing of safety procedures because of operational or commercial pressures; or

(viii)unsafe cargo stowage; or

(ix)substandard condition of the hull or other plating; or

(x)substandard condition of hatches, water‑tight doors or openings; or

(xi)substandard condition of machinery or steering systems; or

(xii)substandard condition of cargo handling equipment; or

(xiii)inadequate navigational equipment, charts or publications; or

(xiv)the crew’s inadequate language skills; or

(xv)the crew’s poor knowledge of navigation, safety, or seamanship; or

(xvi)inadequately marked obstructions to safe navigation; or

(xvii)lack of traffic or weather information; or

(xviii)a modification of the ship’s equipment or fittings that has not been approved by the appropriate authority; or

(xix)unsafe engine control room procedures; or

(xx)unsafe engineering operational procedures or practices; or

(xxi)unsafe engineering maintenance procedures or practices;

(c)failure to comply with the requirements of the Act or Regulations made under section 425 of the Act in relation to the following:

(i)radio installations, radio equipment or watch keeping arrangements;

(ii)training and certification of crew;

(iii)fire prevention, detection or extinguishing devices;

(d)any other matter that endangers, or could endanger, the safety of maritime navigation.

(2)The following are not reportable safety concerns:

(a)matters showing a serious and imminent threat to a person’s health or life;

(b)terrorist acts;

(c)industrial relations matters;

(d)conduct that may constitute an offence against the law of the Commonwealth, or of a State or a Territory, and that is punishable by imprisonment for 2 years or more.

How are reports to be made?

(1)A report must be made to the Executive Director in a form and manner approved by the Executive Director.

(2)The report must include the following information:

(a)the reporter’s name;

(b)the reporter’s preferred means by which the Executive Director may contact the reporter (postal or email address, or telephone or fax number);

(c)a description of the matter comprising the reportable safety concern.

Note A copy of the approved form is available from Australian Transport Safety Bureau’s website at

Can a report be made orally?

A report that is not made in writing must be reduced to writing by the Executive Director.

Example

A report made over the telephone to the Executive Director must be reduced to writing by the Executive Director.

Part 4 Assessment and acceptance of reports

Processing of reports

(1)The Executive Director must accept a report if:

(a)he or she is satisfied that REPCON Marine is the most suitable avenue for making the report; and

(b)he or she reasonably believes that the matter described in the report is a reportable safety concern; and

(c)he or she reasonably believes the report to be true.

(2)If the Executive Director decides not to accept a report, the Executive Director must:

(a)determine whether to disclose any information from the report and act accordingly; and

(b)deal with the report in accordance with subregulation (3) as soon as practicable.

Note Regulations 14, 15, 18 and 19 affect the powers and functions of the Executive Director relating to disclosure of information contained in reports.

(3)For paragraph (2) (b) and subject to regulation 12, the Executive Director must:

(a)return to the reporter, or destroy, the part of the report supplied by the reporter; and

(b)if any part of the report was supplied by a person other than the reporter — return to that other person, or destroy, that part of the report.

Dealing with reports that have been accepted

(1)If the Executive Director accepts a report, the Executive Director must:

(a)determine what information in the report is to be included in databases maintained for the purposes of REPCON Marine and include that information in those databases; and

(b)determine whether to disclose any information from the report and act accordingly; and

(c)deal with the report in accordance with subregulation (4) as soon as practicable.

Note Regulations 14, 15, 18 and 19 affect the powers and functions of the Executive Director relating to disclosure of information contained in reports.

(2)The Executive Director may include personal information in a database maintained for REPCON Marine only if:

(a)it is impracticable to remove the information from the report; or

(b)the Executive Director considers that it is necessary to keep in contact with the reporter or a person or an organisation referred to in the report, and the information is reasonably necessary for that purpose.

(3)If personal information is included in a database for the purpose mentioned in paragraph (2) (b) and the Executive Director is satisfied that it is no longer necessary or desirable to keep the information for that purpose, the Executive Director must permanently remove the information from the database.

(4)For paragraph (1) (c) and subject to regulation 12, the Executive Director must:

(a)return to the reporter, or destroy, the part of the report supplied by the reporter; and

(b)if any part of the report was supplied by a person other than the reporter — return to that other person, or destroy, that part of the report.

Reports the making of which may have constituted an offence

(1)If the Executive Director reasonably believes that the making of a report constituted an offence against section 137.1 of the Criminal Code, the Executive Director must not:

(a)destroy the report; or

(b)return the report, or any part of the report, to the reporter; or

(c)return any part of the report supplied by a person other than the reporter to the other person;

until 2 years (the relevant period) have elapsed from the date when the report was made.

(2)If a prosecution for an offence against section 137.1 of the Criminal Code is commenced within the relevant period, the Executive Director must not destroy, or return to a person, any part of the report that is required to be kept for the purpose of the prosecution until it is no longer required for that purpose.

Note Under section 137.1 of the Criminal Code, it is an offence for a person to knowingly supply false or misleading information to a Commonwealth entity.

Part 5 Disclosure and use of reports and information in reports

Note Regulation 13 has been reserved for future use.

Disclosure of personal information in reports

(1)Subject to subregulations (2), (3) and (4), the Executive Director may disclose information from a report only if the Executive Director has removed all personal information from the information to be disclosed.

(2)If the Executive Director proposes to disclose information from the report, and it is not possible to remove from the information all personal information about a reporter or a person referred to in the report without defeating the purpose for which the Executive Director proposes to disclose the information, the Executive Director may disclose the information only if:

(a)the Executive Director considers it necessary or desirable to do so for any purpose mentioned in subregulation 5 (3) or (4); and

(b)the Executive Director has first obtained the consent of the person to whom the personal information relates.

(3)Nothing in subregulation (1) or (2) prevents the Executive Director from disclosing personal information:

(a)for the purpose of investigating a possible offence against section 137.1 of the Criminal Code; or

(b)in accordance with regulation 19 in relation to a report relating a terrorist act; or

(c)if the Executive Director believes on reasonable grounds that disclosure is necessary to lessen or prevent a serious and imminent threat to a person’s health or life.

Note The matters addressed by paragraphs (3) (b) and (c) are excluded from being reportable safety concerns by subregulation 7 (2).

(4)If the Executive Director does not accept a report because it relates to conduct that may constitute an offence against the law of the Commonwealth, or of a State or a Territory, and that is punishable by imprisonment for 2 years or more, nothing in subregulation (1) or (2) prevents the Executive Director from disclosing personal information for the purpose of investigating the possible offence.

Note The conduct in subregulation (4) is excluded from being a reportable safety concern by subregulation 7 (2).

(5)A person, body or agency to whom personal information is disclosed in accordance with these Regulations must not use or disclose that information for a purpose other than the purpose for which the information was given to the person, body or agency.

Opportunity to comment on reports in certain circumstances

(1)This regulation applies if the Executive Director proposes to send information from a report to the Authority.

(2)Subject to subregulation (5), before sending information from the report to the Authority, the Executive Director must give each person or organisation referred to in the report a version of the report, in accordance with regulation 14.

(3)The Executive Director must allow each person or organisation 5 working days to comment on the report’s contents.

(4)The Executive Director must take into account any comments made by a person or organisation to whom a version of the report is given when deciding whether to send information from the report to the Authority.

(5)The requirements of subregulations (2), (3) and (4) do not apply to the giving of a report to a particular person or organisation if the Executive Director believes that:

(a)giving a version of the report to the person or organisation is likely to:

(i)inhibit the Executive Director from achieving a purpose of the scheme mentioned in subregulation 5 (3) or (4); or

(ii)damage REPCON Marine’s reputation for keeping personal information confidential and, consequently, reduce reporting under REPCON Marine; or

(b)it is not practicable to do so.

Report not to be ground for disciplinary action

(1)A person must not use information derived from an RSC report to take disciplinary action against an employee of the person.

(2)A person is not entitled to use information derived from an RSC report to make a decision of an administrative character under an Act, or an instrument made under an Act, against a person.

(3)This regulation does not prevent the use of information derived from a source that is not an RSC report.

Reports not to be admissible in evidence

(1)Each of the following is not admissible in evidence in a court or tribunal:

(a)an RSC report;

(b)evidence about the contents of an RSC report.

(2)Subregulation (1) does not apply in proceedings in relation to whether the making of a report constituted an offence against section 137.1 of the Criminal Code.

(3)Subregulation (1) does not apply if the Executive Director issues a certificate to the effect that:

(a)the use of a specified RSC report, or evidence as to its contents, in specified proceedings is not likely to reduce reporting under REPCON Marine; or

(b)any reduction in reporting under REPCON Marine that the use of a specified RSC report, or evidence as to its contents, in specified proceedings might cause is outweighed by the public interest in the use of the report, or evidence as to its contents, in specified proceedings.

(4)The Executive Director may issue a certificate mentioned in subregulation (3) in relation to an RSC report, or evidence as to its contents, only for proceedings involving an appeal against:

(a)a decision of an administrative character made under an Act, using information derived from the report; or

(b)a decision of an administrative character made under an instrument made under an Act, using information derived from the report; or

(c)a disciplinary action taken using information derived from the report.

Part 6 Reports relating to terrorist acts

Reports relating to terrorist acts

(1)If a report relates to a terrorist act, the Executive Director must inform certain persons about the making of the report if the Executive Director is able to contact those persons.

(2)For subregulation (1), section 181 (other than subsection (1)) of the Marine Transport and Offshore Facilities Security Act 2003 applies to determine who the Executive Director must inform of the making of the report.

(3)Section 181 (other than subsection (1)) of the Marine Transport and Offshore Facilities Security Act 2003 applies as if a reference in that section to an incident were a reference to a report relating to a terrorist act.

(4)If a report relates to a terrorist act, the Executive Director may, after receiving a request from a person referred to in subregulation (2), send the report, or information from the report, to that person.

Authorisation of disclosures of personal information for this Part

For the purpose of enabling the Executive Director to act under regulation 18 in relation to a report describing a terrorist act, the Executive Director is authorised to disclose personal information contained in the report:

(a)to a person who is being informed about the making of the report under subregulation 18 (1); or

(b)to a person who makes a request under subregulation 18 (4).

Part 7 Miscellaneous

Delegation by Executive Director

(1)The Executive Director may, in writing, delegate to a person engaged to perform duties in the Department (whether as an APS employee, SES employee or under any other arrangement) a power (except this power of delegation), function or duty of the Executive Director under these Regulations.

(2)In exercising powers, functions and duties under a delegation, the delegate must comply with any directions of the Executive Director.

Note APS employee and SES employee are defined in the Public Service Act 1999.

Note

All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See